Privacy Rights and Reproductive Freedom

In three cases this past term, narrow Court majorities acted to preserve the privacy rights of individuals. In Ferguson v. Charleston, a 6-3 ruling struck down a government practice that severely harmed the privacy of pregnant women. The Court found unconstitutional a state hospital’s policy, developed with the local police, of testing pregnant women without their knowledge or consent for suspected drug use and giving the police the positive test results of women who failed to comply with a drug treatment program so that they could be arrested.

In the second privacy case, City of Indianapolis v. Edmond, the Court ruled 6-3 that the police cannot set up “highway checkpoints” to engage in suspicionless stops of random motorists for the purpose of looking for drugs. Justices Scalia and Thomas dissented in both of these cases, along with Chief Justice Rehnquist, and voted to uphold these intrusive government practices.

The third case, however, brought about an unusual configuration of justices. Kyllo v. United States concerned police use of thermal-imaging devices that, when aimed at a home from the outside, can detect relative amounts of heat within the home and can indicate the use inside the home of high-intensity lamps typically used to grow marijuana indoors. In Kyllo, the Court ruled, 5-4, that the aiming of a thermal-imaging device at a person’s home by the police from a public street is a “search” within the meaning of the Fourth Amendment and is unconstitutional in the absence of a warrant. Justice Scalia wrote the opinion for the Court, in which Justices Thomas, Souter, Ginsburg, and Breyer joined. Justice Stevens filed a dissenting opinion in which Chief Justice Rehnquist and Justices O’Connor and Kennedy joined. A key to Justice Scalia’s opinion in Kyllo was his reasoning that, in the absence of this new technology, the information gathered by the police about the interior of the defendant’s home could only have been gained by a physical intrusion into the private property of the house itself. Scalia and Thomas were not willing to recognize such privacy interests, however, with respect to pregnant women in Ferguson or motorists in Edmond.

In another unusual configuration of justices, the Court held in Atwater v. Lago Vista that the police may handcuff and arrest, without a warrant, persons accused of minor crimes punishable only by a fine. The Court’s opinion was written by Justice Souter for a five-justice majority that also included Chief Justice Rehnquist and Justices Scalia, Thomas and Kennedy. Justice O’Connor was joined in dissent by Justices Stevens, Ginsburg and Breyer.

Late last term, after the publication of Courting Disaster, narrow majorities of the Court rejected efforts to undermine abortion rights, with Scalia and Thomas dissenting. In Stenberg v. Carhart, a 5-4 majority invalidated Nebraska’s so-called partial birth abortion ban because it imposed an undue burden on a woman’s right to choose. Only one more justice on the Court like Scalia and Thomas would authorize such statutes, even those that contain no exception for the preservation of a woman’s health. Three of the four dissenters (Scalia, Thomas and Rehnquist) would vote to overturn Roe v. Wade altogether. And in a 6-3 decision that produced particularly bitter dissents by Justices Scalia and Thomas and by Justice Kennedy, the Court in Hill v. Colorado upheld a Colorado law that prevents abortion protesters and others from approaching any nearer than eight feet from people who are within 100 feet of a health care facility without their consent.